De L v H [2009] EWHC 3074 (Fam)

[2009] EWHC 3074 (Fam)Case No FD09P01381
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 3/12/2009
Before
THE PRESIDENT OF THE FAMILY DIVISION
Between
De LApplicantHRespondent
David Williams (instructed by International Family Law Group) for ApplicantCharles Hale (instructed by Freemans Solicitors) for RespondentKay Halkyard (instructed by Osmond Gaunt-Rose) for ChildHearing Hearing dates: 7th, 8th October, 12th November and 26 th November
Judgment

SIR MARK POTTER, THE PRESIDENT OF THE FAMILY DIVISION

[1]The male child the subject of these proceedings is R who was born on 27 February 1996 and is now aged 13 and a half. The plaintiff is his mother, a Portuguese national living in Portugal, who brings a Hague Convention application pursuant to the Child Abduction and Custody Act 1985 and Council Regulation (EC) No 2201/2003 (B2R) against the defendant, R’s father, who is a British National living in England. The mother alleges that the father has wrongfully retained R in England since 4 September 2008 when he failed to return to the mother’s care from his long summer holiday with the father, as arranged between the parties. It is not in dispute that, at that time, the mother enjoyed custody of R under orders of a Portuguese Court. By way of defence, the father denies Wrongful Retention and raises defences of Acquiescence and Child’s Objections pursuant to Article 13(a) of the Convention. A defence asserting great risk of an Intolerable Situation if R were returned to Portugal has also been raised.[2]Regrettably, this is the third occasion on which there have been Hague Convention proceedings between the parties. They met in Portugal in November 1993 and married on 17 December 1994, R being born on 27 February 1996. When he was four months old the parties moved to England in May 1996 so that the father could start up a business here.[3]The marriage was already in difficulties. According to the father the mother had a volatile temperament. According to the mother she suffered domestic violence at his hands. Six months after R’s birth, the mother left the matrimonial home in December 1996.[4]The mother subsequently obtained leave from the English Court to remove R (then 18 months old) temporarily to Portugal for five weeks. Following such removal on 1 September 1997, she failed to return him and began custody proceedings in Portugal, being awarded provisional guardianship and care of R on 30 October 1997, with rights of contact for the father in Portugal. The English Court (the Slough County Court) ordered the return of the child to England and the father brought Hague Convention proceedings in the Portuguese Court. The proceedings were protracted and, in October 1998 the Portuguese Court declined to order R’s return, holding that the mother had made out a defence under Article 13 (b) of the Convention. The Portuguese Court declined to make an order for contact between R and the father other than in Portugal and, in the face of maternal opposition, the father had little or no contact with R for two years until September 1999, when he was granted permission by the Portuguese Court for staying contact with R for a 5 day period in Lisbon.[5]In the face of the mother’s non-co-operation and difficulties raised by her in implementing such contact in Portugal, the father removed R to England without the permission of the Portuguese Court in September 1999. The mother immediately pursued Hague Convention proceedings and, within three weeks, on 11 October 1999, this Court ordered the father to return R forthwith to Portugal. It is important to note that the report of the social worker, Dawn McNally, who reported on R’s situation to the Court, stated that R appeared content, well cared for and positively attached to his father, but she expressed concern at “emotional abuse inherent in a situation where both parents go to the lengths of abducting a child”.[6]The mother continued to oppose contact between R and the father. Between 1999 and 2004 it is apparent that there were a series of reports and Court proceedings in Portugal, recited in a translated Court report (case number 1231-A/97) of the Third Court of the Family and Minors Court of Lisbon dated 5 January 2004. This records the opposition of the mother to contact with the father and various evasive and delaying steps apparently taken by her despite the fact that social reports recommended, and judicial decisions provided for, renewed contact between R and his father in England. The position was reached whereby the Portuguese social services and the Department of Justice, supported by the guardian in the Portuguese proceedings, were recommending transfer of temporary custody to the father, with similar contact and visiting arrangements afforded to the mother as had previously been provided for in favour of the father. In the Lisbon Court’s decision of 5 January 2004, the position of the guardian of minors was summarised as follows:
“[The guardian], basing herself on the high interests of the minor, now seven years old, alleges that the mother uses and treats the child like a possession of hers, disrespecting and offending his feelings, generating anguish that divides him, and that the father has objective and subjective conditions to have the child, proposing the granting of custody of the child to the father.”
[7]The Court, nonetheless, regarded the Portuguese social services report, upon which the opinion of the guardian was based as lacking factual rigour and being based on evidence which had not been made clear to the Court. Accordingly, and bearing in mind the limited contact which the father had previously had, the Court confirmed that custody and care should remain with the mother; however, it made generous provision for contact between the father and R in Portugal and provided that such arrangement should not prejudice its later alteration “should adequate conditions be proven for the minor to live with the respondent father in English territory.”[8]The Department of Justice and the father appealed that decision and in November 2004 the Appeal Court in Lisbon, while affirming the grant of custody of R to the mother, provided for regular holiday contact with the father in England. Between November 2004 and summer 2007 R thereafter had regular holiday contact with the father. He would spend the summer holidays with the father, with alternating Christmas and Easter holidays and it is not in dispute that such contact worked well.[9]The father and R both state that in 2007 R asked if he could try living with the father for a while. The father told R it was not a matter for him as it had been decided by the courts and he should discuss it with his mother. R did so and the mother was very upset at that suggestion so that her relationship with R, already difficult, began to deteriorate. The mother does not dispute this but states her belief that the father had begun to manipulate the son against her and that, following an accident to the mother’s back while swimming, she believed the father tried to convince R she would not be able to care for him properly as a result.[10]In or about March 2008, at R’s request, the father made an application (the form and terms of which are not before me) to the Faro Court to vary the custody arrangements. [The hearing date was subsequently set for 28 October 2008 – see further below].[11]It was agreed between the mother and father that R would stay with the father between 24 June and 4 September 2008 under the agreed arrangements and a return flight was booked for those dates. As usual, R travelled unaccompanied, but with assisted travel, to England where he was met by his father and the airline staff who handed to the father R’s Portuguese travel document, namely his “billet de identificacion” (BI).[12]The contact went well over the summer, the father and R sharing an interest in car maintenance, cycling and off-road racing as well as small projects of furniture design. Telephone contact with the mother was sporadic. Until certain conversations at the end of August and the beginning of September concerning R’s return, to which I will shortly turn, the father says that the mother telephoned only three times. The mother says that R’s mobile telephone was often not working and that she believed the father told R not to telephone. Both the father and R deny this. What is clear is that R was not returned to the mother’s care in Portugal on 4 September 2008 as agreed. There has been dispute over the reasons and circumstances surrounding R’s non-return, which go to the question of both wrongful retention by the father as at 4 September as alleged by the mother (which the father denies) and the father’s plea of subsequent acquiescence by the mother, based on her conduct and attitude at the time, which she denies. I have heard extensive oral evidence from the parties on these two issues.[13]It is the father’s case that, in the last week of August 2008, he found that R’s Portuguese BI and the British passport in respect of R which the father held were missing. R, who by then had told both his mother and father of his wish to stay with the father in England, informed the father that he had found and burned both documents so that he could not return to Portugal as previously arranged.[14]Having heard evidence upon the topic from both the mother and the father, I accept the father’s evidence, as to the position at 4 September 2008, supported as it is by the terms of an e-mail exchange between the parties on 28/29 August and the statements of R to his guardian ad litem and the CAFCASS social worker who has reported on R’s wishes and feelings. The position may best be summarised by quoting an e-mail sent by the father on 28 August, which I am satified was at the time both truthful and sincere:
“As you are aware, last week I was looking in the drawer where I kept Rs BI and passport and could not see R’s BI. I asked him where it was and he told me that he told you he was not going to Portugal and he burnt it and his UK passport. I asked him to call you but he said he didn’t want to. I called you and you asked where he was and I had sent him to his bedroom to think. You told me not to be too hard on him give him time, I did but he still insisted that he had burnt it. I have searched and searched even under the carpets and still cannot find them, so I said he really has. … This is a very serious situation. As I told you yesterday by phone I have been in touch with the Portuguese embassy and visa section but they inform me that only the parent with custody can request emergency travel documents and you will need to have his birth certificate to do so. Please do this urgently as he must travel on the 4th from Heathrow as per travel documents that I have now sent twice before to you. I have asked today for advice from Hipolito [the father’s Portuguese lawyer], he said you might be able to arrange and fax to the TAP office at airport. I don’t know if you can but if you can then PLEASE PLEASE do this quickly as it is best that R returns for many many reasons & time is running out fast. R has told me that he has sent e-mails to you and phoned you again this morning saying that you wanted to speak to me. I called you today but you were crying and did not want to talk about R and put the phone down on me. We need to deal with this now and only you have the power to solve this. I will call you again later to see if you have received this e-mail. Please … talk to me without putting the phone down because there is very little time to resolve this … And We must try.”
[15]By her e-mail reply of 29 August, the mother did not challenge the truth of the father’s account or his then anxiety that R should return in the light of the Portuguese Court proceedings, though she expressed doubt that R had in fact burned his documents. She stated:
“its out of question to passed you any document regarding your terms regards to R. in any event if can not be treated here Portugal, you have to pay me the ticket to pick up R in England. that’s your responsibility and the Portuguese Court responsibility and your lawyers to sort out the situation. the child is with you on holidays you have to be responsible for [R].”
That remained the mother’s attitude, despite the fact that the father subsequently confirmed to her over the telephone that the position had not changed and he would pay for her to come to England to fetch R.[16]I accept that the father searched unsuccessfully for the Portuguese BI and R’s British passport, which had originally been obtained by the father in 2004 following the grant to him by the Portuguese Court of a right to staying access. He had obtained it on application to, and it was issued by, the U.K. consulate in Portugal. The father made inquiries of the Portuguese embassy and was told that the BI could only be provided to the parent with custody on production of the child’s birth certificate. The father did not have a birth certificate and the mother was not prepared to help. He also contacted the United Kingdom passport office who advised him that they could find no record of the issue of the passport in Spain and that, for issue of a new passport, they would similarly require authorisation from the mother and production of a Portuguese birth certificate.[17]Following receipt of the mother’s e-mail on 29 August the father had contacted his local adoption support manager who advised him to contact the central authority of the child abduction unit in the United Kingdom and to contact a solicitor. The father took that advice.[18]The position is summarised in a letter from the International Child Abduction and Contact Unit (ICACU) in England to its Portuguese office dated 9 September 2008:
“[The father] has been unable to return [R] to the care of his mother because during his visit to the U.K. [R] destroyed his travel documents. [The father] informed [the mother] about the loss [of] the travel documents and the need to replace [R’s] passport. However, [the mother] has not made any [attempts] to deal with replacing [R’s] passport although [the father] has requested her assistance. [The Father] is unable to apply for travel documents for [R] without [the mother’s] consent. Nevertheless, [the father] has attempted to contact the Portuguese consulate, but has been unable to get their assistance with obtaining travel documents. [The father] is willing to return [R] to Portugal. However, due to [the mother] not co-operating with his request to obtain travel documents he has been unable to return [R] to his mother’s care. Furthermore, [R] is refusing to board a flight back to Portugal because he does not wish to live with his mother. [The father] has requested that [the mother] talk to [R] to resolve any problems they are currently experiencing in their relationship. So far [the mother] has made not any attempts to speak to [R] about why he does not wish to return to Portugal. At the moment the Family Court in Faro is dealing with the matter of contact between the parties and those go to a hearing in this matter in the near future. I would be grateful if you would contact the Court to make them aware that [R] is currently in the United Kingdom and is unable to return because [the mother] allegedly refuses to apply for new travel documents for her son. I have enclosed e-mails sent to [the mother] by the [father] requesting assistance for their reference …. [the father] was informed by [the mother] … she had approach Interpol about the non-return of [R] but she still has [not] sorted out [R’s} travel documents.”
[19]In fact, on the previous day, the mother had gone to the Portuguese police and made a criminal complaint against the father alleging breach of the order of the Portuguese Appeal Court and she made clear in her evidence to me that she wished for criminal charges to be brought against the father in breach of that order.[20]The situation did not change before 28 October 2008, the date of the appointment in the Faro Court to progress the father’s application for change in the custody of R.[21]The father did not attend, but was represented at that hearing by his lawyer, who put in a statement setting out the father’s position and seeking a rescheduling of the date fixed for a parents’ meeting. The record of the Faro Court states that the father’s legal representative stated that R had not yet been given documentation (to travel) and that the deputy prosecutor informed the mother that the correct procedure to procure the child’s return to Portugal was through the mechanisms of the Hague Convention. The judge, having tried and failed to achieve an agreement with regard to the change in the regulation of parental responsibility, issued an order requiring the father to pay a nominal fine if he did not justify his absence within a statutory deadline. The judge made an order that the Portuguese Consulate in England carry out an investigation of the economic situation of R and, if possible, his father. The Portuguese Social Security was asked to compile a social report on a home visit to the mother. Directions were given to the parties to indicate their cases, to ‘provide’ witnesses and to apply for the necessary steps. The Judge then adjourned the proceedings.[22]By this time, the father had placed R in an English school. The mother went to the Portuguese Central Authority offices, and and was given forms to complete for the purposes of Hague Convention proceedings. She completed a form which is before me signed and dated 27 November 2008. However, she did not take any further steps in that respect at that time. Nor did she communicate further with R. According to her evidence, she was preoccupied by the illness of her father who had recently been admitted to hospital. In this respect in cross examination she acknowledged she could offer no good reason why she did not communicate further with R. Nor could she offer good reason why she had not sent R any Christmas present. However, she e-mailed the father on 11 January 2009 accusing him of kidnapping R for a second time and placing him irregularly at school in the United Kingdom, and on 14 January 2009 she wrote to the Director of Social Services in Amersham, protesting at the situation, asserting that her son was illegally retained in England and requesting that the English police pick him up from his school.[23]On the next day, 15 January, she sent an e-mail to R reprimanding him for not calling to wish her a merry Christmas and happy New Year and saying:
“If i did not yet return to England and pick u up its because money is short … I excuse you for your age and because u are being manipulated because I am really sure u find ther was pure deception nothing more nothing less. try to find in your heart and ask God to help you realise that … My son use your intelligence but for positive ways and never negative im your mother and always will be and im sure you will be in time to have a brilliant life and future. I am always thinking about you and always will have my arms open to you. Soon very soon you will discover that and very soon we will meet.”
She recorded her concern about R’s grandfather and said:
“Meanwhile read good english books go to library and take all the advantages in positive ways …”
[24]On 28 January 2009 R’s grandfather died.[25]In January or February the father received a summons from the Portuguese Embassy demanding that he go there and produce R’s travel documents and school and other reports, and demanding a fee of £20. I have not seen the summons but no doubt it was issued pursuant to the proceedings in the Faro Court. The father did not comply, informing his lawyer later that he did not consider the Embassy had the authority to make such demand.[26]27 February 2009 was R’s thirteenth birthday. Again he received no acknowledgment of it from his mother, as she admitted in evidence. During this period, the father, told R that the mother could be expected to make an application to the English Court under the Hague Convention, but because R and the father heard nothing from the mother with regard to those proceedings, R came to the gradual conclusion that his mother had accepted the position and that no application for his return would be made.[27]In April 2009 when the father was clearing out his garage, he discovered R’s British passport. He immediately called R, who admitted that he had burned only his Portuguese BI; he had hidden and lied about his British passport because he did not wish to go back to Portugal and knew that his father would try to persuade him onto the plane. Despite the finding of the passport, the father decided not to inform the mother, stating in this respect that by then she had had more than six months in which to come to see R, or help him to return to Portugal; however she had not done so and by then R had become well settled in England.[28]It is the mother’s case that, following the death of her father, her grief meant that she did not feel strong enough mentally or physically to deal with anything else; she therefore failed to progress any application under the Hague Convention until her decision to do so in April 2009. On 16 April 2009 she posted her application to the Portuguese Central Authority and, her originating summons was eventually issued on 3 July 2009 following a without notice application made before Sir Christopher Sumner sitting as a retired High Court Judge on 2 July 2009.[29]On 31 July 2009 R was interviewed by a CAFCASS welfare officer, Sharon Barnes.[30]Following directions from the Court, including an order by Mr Justice Singer dated 4 August 2009 that R be joined as a party to these proceedings in the light of his vigorous objections to his return, the case was listed for final hearing on 27 August 2009 with a time estimate of two days, because of the need for attendance for cross-examination of the parties in the light of the emerging issues.[31]The mother failed to attend for the listed final hearing. At a hearing before Mr Justice Moylan on 26 August 2009 the Court was informed that she had suffered an accident, slipping at the airport and hurting her back, as well as breaking her collar bone. While R was concerned for his mother, he was on the other hand sceptical as to whether or not such injury had occurred in the light of a previous episode when the mother had falsely claimed that injury prevented her fulfilling her obligation to facilitate R’s contact with the father in Portugal. The Court therefore ordered that the mother should file and serve by 14 September 2009 evidence from a medical practitioner as to the injuries she sustained on 25 August 2009. Despite a lengthy letter from R’s solicitors dated 4 September 2009 giving chapter and verse for R’s suspicions, the mother failed to comply with the order of the Judge. She simply produced at the hearing a brief photocopy report dated 25 August 2009 headed illegibly and addressed “to whom it may concern” to the effect that she was “ill with incapacity from travelling to UK for a period of about 1-2 weeks”. In the light of the explanation earlier advanced to the Court, I have serious doubts whether the mother was in fact incapacitated from attending. The matter finally came on for hearing before me, with the mother and father in attendance on 7 October 2009.

Wrongful Retention

[32]From the commencement of the proceedings, it was the mother’s case that the date of wrongful retention in this case was 4 September 2008, namely the date when, by previous arrangement, R should have been returned to the mother on a pre-booked flight to Portugal. She asserted that, from the outset, the father and R had put their heads together in order to invent the story of the destruction of the BI and/or R’s passport. However, the father’s affidavit dated 30 June 2009 made clear that, in April 2009 he had found R’s United Kingdom passport, and learned that R’s account of destroying it was false; yet he had not so informed the mother or the Faro Court. The mother therefore sought, and was granted permission at the outset of the hearing before me, to amend her case to plead in the alternative that the wrongful retention occurred on or about that date.[33]Having considered the evidence including detailed oral evidence on the question of Wrongful Retention and Acquiescence I am satisfied that, as at 4 September 2008, the father had indeed made all proper efforts to enable R to return as arranged but had received no co-operation from the mother who was herself best placed to secure it for a return; in an angry and frustrated state, and with mixed emotions, she adopted the attitude that it was for the father to secure R’s return regardless of R’s wishes and the difficulties created by destruction of his travel documents. Her state of mind remained angry and confused. Having initially accepted the father’s (truthful) version of events in late August, but finding R reluctant to speak to her on the telephone because of the angry exchanges such conversations provoked, she quickly changed to a state of belief that the situation was in fact the result of a conspiracy between R and his father rather than a situation initiated by R without the father’s complicity. No doubt this was confirmed in her mind when the father did not attend proceedings in the Faro Court, but sought an adjournment for the parents’ meeting.[34]In these circumstances I consider that the mother’s primary case of wrongful retention upon 4 September 2008 fails, because I am satisfied that the father did all he could to secure R’s return on that date, only to find such efforts frustrated by the absence of travel documentation and the mother’s attitude. Equally, however, I am satisfied that by the end of October, having secured a place in school for R and explained the position to the Faro Court, the father simply sat back to wait and see whether the mother would launch proceedings under Article 8 of the Hague Convention, which the Portuguese Court had indicated to be appropriate if she wished to secure R’s return, but which the father was resolved to oppose. His later refusal to attend the Portuguese Embassy in London in January/February 2009 and his inaction on later discovery of R’s passport, when he did not inform the mother or take any steps to secure or encourage R’s return are testimony to his change of attitude from his initial resolve that R should return in September 2008 to one of opposition and non-co-operation because of R’s strong objections. I am satisfied that as at the end of October 2008, following the 28 October hearing in the Faro Court, the father expected the mother to initiate Convention proceedings and formed the intention to resist them. The father’s wrongful retention of R is established as at that date.

Acquiescence

[35]For the purposes of Article 13 of the Convention, the question whether a parent who complains of wrongful removal or retention of a child has acquiesced in such removal or retention depends upon the subjective state of mind of the complaining party.[36]The Court is concerned, not with the question of the removing/retaining parents’ perception of the position, but whether the applicant acquiesced in fact: se Re H (Minors) (Abduction Code of Acquiescence) [1997] 1 FLR 872 per Lord Browne Wilkinson at 884 and Re S (Minors) (Abduction Code of Acquiescence) [1994] 1 FLR per Neill LJ at 819 and 838. The subjective intention of the complaining parent is a question of fact for the trial judge to determine in all the circumstances of the case. However, the burden of proof rests upon the abducting parent.[37]There is only one exception to the rule that acquiescence is a question of fact rather than perception, namely the position where the words or actions of a wronged parent at the time clearly and unequivocally show, and have led the other parent to believe, that the wronged parent is not asserting or going to assert his/her right to the summary return of the child and are inconsistent with such return.[38]Based on the mother’s primary case that wrongful retention occurred on 4 September when R failed to return as arranged, it has been argued by the father that by reason of her actions shortly thereafter she must be taken to have acquiesced in such wrongful retention. She refused to assist with provision of travel documents or to take any steps herself to provide them; she refused to come to England in response to the father’s offer to pay her flight and she failed for months on end to commence Convention proceedings in full knowledge of her rights. It is asserted that the mother’s state of mind was such that she wished to build up her case to retain custody in the Portuguese proceedings which were then afoot and for that reason was not in truth anxious for R’s return at the time, but rather to torpedo the success of his application in the Faro court for an order that R should live with him in England. Given the mother’s later efforts to secure R’s return, reliance is placed upon the principle that acquiescence is a continuing state of affairs and, once given, cannot be withdrawn: see Re S (Abduction: Acquiescence) [1998] 2 FLR 115 at 122.[39]That submission cannot survive analysis upon the facts of the case. The father has wholly failed to persuade me that the mother ever acquiesced in R’s non return, either as a subjective matter or by reason of any unequivocal action (or inaction) in asserting her rights for R’s return.[40]I find it difficult to envisage a case where simple refusal by a custodial parent to assist the non-custodial parent in fulfilling the latter’s responsibility to return a child from abroad could be held to amount to acquiescence in that child’s non-return. Certainly it has not been proved in this case. Whilst the uncooperative attitude of the mother is difficult to explain as a rational matter, and certainly she failed properly to explain it in her oral evidence, the retention of R in England was and remained a matter of strong protest on her part, coupled with a belief that the father had the power to resolve it. As at 4 September, I accept that the father’s retention of R was a result of his inability to put him on a plane with travel documents. In that sense it was involuntary and in my view should not be regarded as wrongful for the purposes of the Convention. It was nonetheless incumbent upon the father to do all he could to encourage and secure R’s return, thus avoiding any deliberate breach of the mother’s custody rights under the order of the Portuguese Court. I have already held such deliberate breach to be demonstrable and demonstrated as at end October 2008 (see paragraph 33 above). While at the time the father undoubtedly hoped that the mother would not in the event take Convention proceedings, he certainly had no grounds by reason of her attitude or conduct to doubt that she would do so or that she wished to do other than assert her right to the summary return of R.[41]I therefore hold that the defence of acquiescence fails.

Intolerable Situation

[42]The father has raised a defence under Article 13b of the Convention to the effect that there is a grave risk that R’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation.[43]I do not propose to consider this defence at length because it was not vigorously advanced and no sufficient basis for it has been demonstrated. While, according to R, he has suffered violence from the mother in the past, he has stated that he is “no longer afraid of her”, and it has not been seriously suggested that, mature as he now is, he remains in any physical danger from her. So far as psychological harm is concerned, while it has been suggested, and I accept, that he would be returning home to a very stressful situation as elaborated by me in relation to the issue of “child’s objections” next considered, there is insufficient evidence before me, nor do I consider, that serious psychological harm would be likely to arise as a result. Conditioned as the words “intolerable situation” are by their context and the words in Article 13b which precede them, I am not satisfied that such a “defence” has been established. At the same time, I have no doubt, under the topic to which I now turn, that to order R’s return to Portugal would be to consign him to a high level of strife and unhappiness from which, at the least, he would seek refuge by avoiding his mother so far as possible and spending as much time as he could at the house of cousins with whom he has in the past sought to spend much of his free time.

Child’s Objections

[44]In respect of R’s objections, I have received evidence as follows. i) The report of Ms Sharon Barnes, an experienced welfare officer and Family Court advisor from the CAFCASS abduction team who was directed by the Court to prepare a report addressing R’s wishes and feelings and any objection he might have in returning to Portugal. Ms Barnes also gave oral evidence before me. ii) Two affidavits from Mr Peter Martin, R’s guardian appointed to represent him in the proceedings. The first is dated 7 July 2009 and was sworn in support of R’s application to be separately represented. The second is dated 21 August 2009 and exhibits the guardian’s notes of a meeting at which R confirmed to the guardian the relatively short content of Ms Barnes written report and elaborated upon his objections and, in particular, on the factual matters underlying them. I also heard the oral evidence of the guardian. iii) I have seen R’s year 8 full report from his English school (an Arts and Technology College) which show high attainment and excellent progress. iv) Finally, I have had a lengthy conversation with R in the presence of Ms Barnes, following the same procedures as are set out in my earlier decision in JPC v SLW and SMW (Abduction) [2007] EWHC 1349 (Fam) I have taken this unusual course in the light of R’s age and maturity (see further below), and his view, firmly expressed to the guardian, that he wished to see the Judge who decided his case for the reason recorded at the end of the guardian’s notes of the meeting as follows:
“ If a Judge says I have to go back to Portugal, I simply won’t go. I would try to make the Judge see how bad it would be for me if he forced me to go back to Portugal. I suppose I would listen if there was a very good reason why I had to go back, but I cannot think of any good reason. If the reason is simply that this is simply what that the law says because of what happens to other people, this is not a good enough reason for me. The Judge needs to understand that it is not just the law but it is what is happening to my life. The Judge has to understand how bad everything would be with me if I went back to live with my mum.”
[45]In those circumstances, I considered it appropriate that, having heard the evidence of Ms Barnes and the guardian, I should speak to R for the purposes of(a) assuring him that I had received full evidence as to the nature and force of his objections;(b) at the same time explaining to him the law in relation to the issues before me, the philosophy of the Convention, the constraints upon the English Court on proof of wrongful removal, and the fact that, if I declined to order his return, the Portuguese Court might nonetheless require it; and(c) seeking to dissuade R from his expressed distrust of the Portuguese Court.[46]The content of Ms Barnes’ evidence may be summarised as follows. R stated that when he was aged 9 or 10 he started coming to England to stay with his father, visiting every school summer holiday and alternate Christmas and Easter holidays. He loved being with his father and never wanted to return to his mother. He was “sick of stuff in Portugal”. He said that once his mother had become angry and smashed up his bedroom with a tennis racquet. He and his mother were always arguing and she had once hit him with a solid stick about two feet long. He had run to the police who took him to hospital as he had a bruise on the cheek. He and his mother did not interact often and on most evenings after school he would simply go to a friend’s house and stay until 8pm. At the weekends he often went to his cousins who lived close by and sometimes stayed over for the whole weekend. He and his mother rarely did anything together other than at family gatherings. She made no effort with him but refused his frequent requests to live in England. When he had asked her whether he could go to the U.K. for a year she had told him he could not because his father had been in prison, which he later found out to be false.[47]He had told his mother before travelling to England in 2008 that he would not wish to return and after arrival told his father of his wish to stay. His father had tried to persuade him that he should go back as he wanted to deal with things legally. His father told him that he should return to Portugal and could then ask the Court to decide where he should live. However, R did not wish to run the risk of an adverse decision, as had happened once before, and accordingly he had taken his documentation to the woods and set fire to it, telling his father what he had done. His father had contacted his mother for the information he needed to get replacement documents, but she had refused to give it.[48]When asked what he would do if the Court ordered that he return to Portugal, R said he would refuse to go, though he very much wanted to be in the U.K. legally. If forced to return he would run away from his mother. He said that he did not want contact with his mother. Once a month his father would ask him to telephone her, but when he did, it always ended up in argument, she telling him it was not up to him to decide where he should live and going on about him going back to Portugal. He would reluctantly see his mother if she came to England, but he would not be friends with her as she had hurt him too much for that. He would be happy to go to Portugal to visit his cousins, but would be scared that his mother would keep him there because she had threatened in the past that he would never see his father again. He said he would only agree to see his mother (here in England) if his father were present, but stated that he “is not frightened of her any more”. He said that he liked both England and Portugal but “it is not the place that makes [you] happy, it is who you are with”.[49]Ms Barnes said that R was mature and thoughtful and presented his views clearly without any signs of having been influenced by others. He talked enthusiastically about his father and life in England, but, when pushed about his fears and feelings whilst he was in Portugal, he became visibly upset and clearly found that time difficult to engage with. Ms Barnes stated that R’s objections to returning to Portugal were based on his poor relationship with his mother and the physical abuse he claimed to have experience whilst in her care. She had no doubt that R was sincere in his wish to remain living with his father. She stated:
“He gives cogent reasons as to why he should stay in the U.K. and I am sure that he would run away at the first opportunity if returned to his mother in Portugal.”
[50]Pressed in cross examination Ms Barnes, did not depart from these views. She stated it was clear that substantial difficulties had started in the relationship with the mother after R had started to have contact with his father in England. R felt he had been told much about his father which was untrue (including the statement that his father had been in prison) and he felt that he had wrongly missed out on contact with his father as a result. His father had started proceedings in Portugal for variation of custody early in 2008 because R had told his father that he wanted to live in England. She stated that R was a boy who liked to feel in control of his own destiny. He felt that his mother did not take his views and feelings into consideration and her firm impression was that the mother was physically and emotionally less available to him than the father. R has respect for his father who treats him in a more adult way than his mother. He sees both himself and his father as having “lost out” and he holds his mother responsible. Ms Barnes had no doubt of R’s belief that if he is returned home his mother would keep him there and would seek to see that he never saw his father again. While R did not have negative thoughts about Portugal as a country his opposition to return was based on his understanding that if he was sent back to Portugal he would remain in his mother’s care. He appeared clear and sincere in his declarations that he would run away if forced to return.[51]The evidence of Mr Martin in relation to his first interview with R was to the effect that he had seen R away from the presence and any apparent influence from his father. R told him in clear and precise terms that he did not wish to return to live with his mother or to live in Portugal, explaining that he often argued with his mother who became very cross with him over minor issues and would not listen to him. He also said that she had abused him and struck him on more than one occasion when she got angry with him and confirmed that on one occasion he had been to the police in Portugal in February 2008. He was aware that both his parents wanted him to live with them. He believed that his father was more balanced and understanding about this, having always made it clear to him that, if he wanted to live with his mother, then he (his father) would be “perfectly okay” with that. R said he was happier at school in England, having changed schools on a number of occasions in Portugal. He had now settled very well at school in England and made a lot of friends.[52]Mr Martin put to R that it could be suggested that his father, through him, was trying to seek an advantage in Court proceedings and to express things that his father really wanted to say. R seemed somewhat offended that Mr Martin would think that he could be so easily influenced. He said that the views he was expressing were his own. It was his mother who would frequently e-mail his father in relation to matters, copying that correspondence in to R and it was his mother who tried to involve him in any arguments. His father tried to keep the arguments more from him. He wished to participate in the proceedings so that his views could be clearly expressed. He said he had been interviewed in the past by social services but did not feel his views had been properly represented. He therefore wanted the opportunity to be heard himself.[53]Mr Martin stated that he believed R had a maturity and development beyond his years, far higher than the average 13 year old and noted that when R was given the Legal Services Commission form to sign, he turned it over, reading the form and declaration in full without being prompted to do so, unlike many adults.[54]In the notes of the guardian following a lengthy meeting with R on 19 August 2009 R’s recollections, views and objections, were set out more fully. R recalled that, at the early age of three, when his father had driven down to the Algarve to see him, the mother refused to let R go to speak to his father and on a later occasion when he was very young and knew that the Court had said that he could see his father and spend his holidays with him, his mother took R out on the day arranged for contact so that he could not see the father. He stated that, during a period when he was having no contact with his father, his mother was always putting his father down, telling R bad things about him including that he was “a druggy” and that “he went to prison”, both of which were untrue. He stated that it was the mother’s attitude and the lies she had told which made him feel bad about her and affected the way he behaved towards her. R made clear that what he was recounting were clear recollections of his own and not what he had been told by other people.[55]R further recalled an incident when he was 11 and his mother had taken him to hospital, telephoning his father and telling him to come to Portugal as she thought R might be dying. By the time the father arrived next day R had been discharged and when his father rang to come and see him the mother told the father that they were on the beach at Val de Lobo, which was a lie, she stating that he could be kept waiting on the grounds that she wished to relax and finish her coffee.[56]R said that most of the arguments he had with his mother since he was about 11 had been associated with his expressing a wish to live in England, which he frequently did. The mother would call him ungrateful to her for her work in bringing him up and state that she had wasted her time in that respect. R stated this made him feel bad about himself and about his mother. He was grateful to her for having brought him up, but her assertions that she had been wasting her time made him feel worthless. He gave details of an incident when he was about 11 when, in response to his speaking about living with his father, the mother had started smashing up his room with a tennis racquet and on another occasion had hit him with a stick. A month or so later she hit him in the face so as to cause a big bruise and, having spoken to his father about this, he had run from the home and gone to the police who took photographs.[57]So far as R’s education was concerned, he complained that he had been at five different schools in the last 5 years and, although he had done quite well at school, he was doing better at his school in England having received very good reports at the end of the school year.[58]Asked about his mother’s suggestion that his father was influencing her views, R said he understood why his mother said that. It was because she would not accept that he wanted to be with his father and felt obliged to blame the father. He described it as upsetting that she considered he (R) could not make up his own mind about these things and believed that he was being brainwashed. He explained that it was simply not so. At the end of 2007 he had made clear his wish not to return. However, his father had insisted he go back and R had asked him to apply to the Courts in Portugal so that he could live with his father although he (R) wanted the case sorted out in England because the Courts in Portugal had previously ignored his wishes. R explained that at the end of his holiday in 2008 he was determined to stay in England and for that reason had removed his passport and Portuguese BI, burning the identity card and telling the father that he had burned both the card and the passport so that he would not continue to look for them. He confirmed that his father had tried to get new documents.[59]Asked whether there was anything he felt he would like to say to his mother, he made clear he wished his mother to understand that he was old enough to know what he wanted and that was that it was best for him to be living in England with his father. He stated that he would have preferred it if she could have agreed and not involved him in further court proceedings and thought it important that he should get a court order which would not be changed, so that he could go and see his cousins and his aunts in Portugal. He stated that he knew he needed to rebuild his relationship with his mother but that it would be easier to do so if he remained in England stating:
“If I was forced to go back to Portugal I would not have any relationship with my mother and the situation would be worse. I would runaway. Mum has done too much.”
[60]Mr Martin stated in oral evidence that R had said that, following R’s removal of his BI and passport, his father had told him that his mother was likely to make an application to the English Court. However, R came to believe that his mother would not make an application some time after Christmas following receipt of the e-mail quoted at paragraph 23 above. R had himself spoken to his mother about it on the telephone and, though she had said she would make the application, he came to believe with the passage of time that she would do nothing about it.[61]Mr Martin confirmed his view that R would do everything in his power not to return and his firm impression was that he would runaway in England if a Court order were made. Further, if forced back to stay with his mother R would not do so, because he is convinced that, if he returned to Portugal, the mother will try to prevent him from ever seeing the father again. The mother had made no suggestions as to where R might stay other than with her on a return to Portugal to await the decision of a Portuguese Court and, R had in any event, lost confidence in the Portuguese Court. So far as his educational situation was concerned R has made clear that he is far happier with the stability he has found and the friends he has made in English schools than at school in Portugal and he wishes strongly to remain in England to do his GCSE examinations. Mr Martin expressed the view that “to force him back to Portugal could be the breaking of him. He would not accept it or the justice of any decision but one which allowed him to remain here”.[62]Challenged about his views in cross-examination, Mr Martin did not alter them in any way. He did however state that R believed that he had played down, rather than embellished, the violent nature of the arguments he had experienced with his mother and the issue of physical chastisement by her. At the same time, R had made clear that he was no longer physically afraid of his mother. Mr Martin’s view was that it was the mother’s attitude to R and not his father’s influence over him which was the driver of R’s now vigorous objections. He observed that, had the mother issued Convention proceedings at the outset when R objected to his return in August/September 2008, it would have avoided a further year for R to settle and become firmer in his views.[63]“Gateway” findings which are required of the court in relation to the discretionary defence of “child’s objections” under Article 13 of the Convention are of course(a) that the child does in fact object to being returned and(b) that he has attained an age and maturity at which it is appropriate to take account of his views. On being so satisfied the matter involves a wide range of considerations in relation to the exercise of discretion: see per Baroness Hale in Re M (Abduction Zimbabwe) [2007] UKHL 55, [2008] AC 1288 at paras 43, 44 and 46.[64]As to (a) it is important to bear in mind that the objection to return must not simply be based on the child’s preference to be with the abducting parent. The basis of objection is that of return to the state of habitual residence rather than simply to the care of the applicant (see per Balcombe LJ in Re S (a minor)(Abduction: Custody Rights) [1993] Fam 242 at 250 and [1992] 2 FLR 492 at 499. Nonetheless, leeway has to be given to the fact that, in most cases, the two elements are so inextricably linked that they cannot be separated: see per Wall LJ in Re T (Abduction: Child’s objections to return) [2000] 2 FLR 192 at 203. In relation to this question and, in any event, in relation to the exercise of the court’s discretion once satisfied the objection is established, the court analyses on the evidence before it the grounds on which the child’s objections are based in order to determine and weigh the strength, soundness and validity of those reasons against the background of the overall purpose of the Convention, namely one of prompt return to the country of habitual residence so that the courts of that country may determine the question of custody and residence on the basis of a full welfare investigation.[65]In this case, upon the evidence before me (as Counsel for mother has been obliged to acknowledge) it is clear beyond argument that R objects to his return, to the extent he has threatened to run away if an order is made, which threat the guardian, Ms Barnes and I take seriously. It is also equally clear to me that he is “of an age and maturity where it is appropriate to take account of his views”. Not only is he, at 13½, plainly of an age where his views should be taken into account in the absence of good reason to the contrary and in accordance with Article 12 of the UN Convention of the Rights of the Child, but he has in the opinion of both a CAFCASS officer and a specially appointed guardian, both of long experience, a maturity and apparent intelligence beyond his years well demonstrated by his capacity to express rational (and rationalised) views, which are his own views, about his personal situation and relationships. I consider that the observations of Ms Barnes and his guardian in those respects were amply confirmed and justified in the course of my own conversation with him for the purpose of ensuring that he understood the nature of the court’s tasks and the constraints imposed upon it in reaching its decision. He fully demonstrated his capacity to understand the position and to explain his own wishes and state of mind generally, as well as in relation to a return to Portugal even for a restricted period to await the outcome of the Portuguese proceedings. He engaged calmly and intelligently with the issues, while firmly maintaining and explaining his objections to return.[66]For the purposes of considering the soundness and validity of R’s strongly and clearly stated objections, it is perhaps appropriate for me to deal with them under the four heads articulated by Ward LJ in Re T (Abduction: Child’s objections to return) [2000] 2 FLR 192 at 204: 1) The child’s own perspective of what is in his own short, medium or long term interests; 2) The extent to which the reasons for objection are rooted in reality or might reasonably appear to be so grounded; 3) The extent to which those views have been shaped or coloured by undue parental pressure, direct or indirect; 4) The extent to which the objections would be modified on return and/or the child’s removal from the pernicious influence of the abducting parent.[67]As to 1), R’s perspective of what is in his interests, both in the short and long term, was explored in the evidence of Ms Barnes and, at substantial length, in the evidence of the guardian, being confirmed by R in his conversation with me. His interests, as he perceives them, are that he should live with his father and go to school in England because he has a life here in which he feels domestically happy, settled and educationally secure. These are not based simply on a preference for his father’s company, but are grounded in his firm view that his situation in Portugal is one of strife and unhappiness, and his perception that, whereas in England he enjoys a calm and settled existence in the home, free from stress, and attending a school at which he is doing well with a number of friends, that situation would immediately be disrupted if his return to Portugal to the custody of his mother were ordered by the Court, whereupon his stressful and quarrelsome situation would immediately resume. He would like his position regularised so that he could visit his cousins in Portugal, but he fears that, if the matter is dealt with by the Portuguese Court, the decision will go against him as before. His firm objections to return are inextricably bound up with(a) his strong feelings that his mother is incapable of treating, or at any rate unwilling to treat, him as a person whose views as to his interests or future are worthy of respect, if and in so far as they differ from her own, and who ascribes any coincidence of view between R and his father to paternal manipulation;(b) feelings of hurt and resentment that, having induced in R a belief shortly after Christmas 2008 that she would not take proceedings for his return, she induced in him a false sense of security and belief that his schooling and his home life in England were secure, only to have them disturbed by belated service of proceedings;(c) a loss of faith in the Portuguese courts as a result of their refusal to give effect to his wishes and feelings as expressed to the social services in Portugal and supported by their recommendation in 2004.[68]As to 2), the question of whether R’s reasons are rooted in reality or might reasonably appear to be so, save that I cannot and do not associate myself with a lack of faith in the Portuguese Courts, it seems to me that the reasons I have summarised are indeed rooted in reality or are, at any rate, reasonable views for a mature child to hold. The view which I formed of the mother’s attitude to R as a result of exposure to her evidence in the witness box, combined with her difficult behaviour and obstructive attitude revealed in the guardian’s and the father’s attempts to advance contact between R and his mother while she was present in the United Kingdom for the proceedings, amply confirm to me that her attitude is indeed one which(a) largely brushes aside or disregards R’s wishes and feelings as spurious or misguided,(b) dismisses the genuineness of the father’s motives in supporting R’s wishes and feelings and(c) is itself impatient of court proceedings to an extent which obliged her advisers to warn the father’s solicitors on 8 October 2009 of her stated intention to attempt herself to remove R from the father’s house that night or from his school on the following day. Having heard the evidence and received the views of the welfare officer and the guardian of long experience, (including in Hague proceedings work), and having myself heard from R, I have no doubt that to return him to Portugal to the custody of his mother would immediately expose him to a stressful and quarrelsome situation exacerbated by the prospect of renewed proceedings in Portugal in relation to which the mother would not hesitate to involve R seeking to press her views on R, a course of conduct of which she accuses the father but which I am satisfied from his evidence and the statements of R is not in fact the case.[69]As to (3), like Ms Barnes and the guardian I do not consider that R’s views have been shaped or coloured by undue parental pressure from the father. R denies it and I believe him. It is plain he has formed his own view based on the nature of his relationship with, and the attitude of, each of his parents.[70]As to (4), I do not consider there is any real likelihood that R’s objections will be modified on return. On the contrary, they are likely to be confirmed and enhanced.[71]I also consider that R’s feelings of resentment in relation to the mother’s delays in instituting Convention proceedings immediately or shortly following the Portuguese hearing in October 2008 are rationally based in that they have indeed led to the situation where, prior to their commencement he had started to feel secure and settled in England at an English school where he was happy, had cultivated friends and was making good progress. Whilst I accept that the mother must have been preoccupied with her father’s illness in hospital, following his death, I do not accept that her very natural grief was such as to incapacitate her from completing and appropriately directing the forms she had received, or from acting on advice to which she had access in November or December 2008. With her knowledge that R was now in an English school and making a life with her father, her delay was in my view unjustified. Challenged to this effect in cross-examination, she observed that it did not matter because she knew she had a year in which to bring Convention proceedings following wrongful retention. While that is correct, in the sense that it is not until a year has passed that a defence of “settlement” is available, conscious delay in starting proceedings simply upon that ground is entirely contrary to the philosophy of the Convention and is a matter which may properly be taken into account by the Court in relation to the exercise of its discretion.[72]As to R’s loss of faith in the Portuguese courts, I sought to make clear to R in our conversation that, the previous orders of the Portuguese courts were made on rational grounds and there was no reason to suppose that the Faro Court would not, following his return, deal with the matter on a basis which fully took into account his wishes and feelings. However, I was wholly unsuccessful in persuading him from his strong objections and real fears of an adverse order following any return. In the light of his previous experience I do not consider that those fears can be said to be irrational, even in an adult whose hopes and expectations have been disappointed on a previous occasion and whose welfare and happiness are so directly involved in the outcome.[73]In connection with my decision, it is right to make clear that, before the completion of the hearing I sought to make contact through the Portuguese Judge who acts as the contact point of the European Judicial network in civil and commercial matters in order to ask certain questions in relation to the state of the proceedings in the Faro Court and in particular the likely timescale of progress in relation to those proceedings. I was informed on 10 November in a message from Dr Borges a Judge of the Faro Court that the Court would require a welfare report in respect of the father and son’s living conditions and “the child’s current position regarding his shift to England or possible return to Portugal”. It was stated that the opinion of the child over the issue of custody would be considered in the final decision and that after receipt of the report there would be a hearing of the father’s evidence and a final trial scheduled to February 2010. In response to a further question it was stated that if the mother had filed a complaint before a criminal court then it would have to be dealt with by that court unless the mother gave up the complaint. In the light of that information, the mother has, through her counsel, agreed to give an appropriate form of undertaking not to pursue such a complaint. Upon that basis, there appears no reason why the father should not participate if required in the welfare proceedings without fear of reprisal.[74]Despite those matters, in the face of R’s rationally advanced objections and strong feelings which appear to me soundly based, I propose in my discretion to refuse an order for return. While it is not the function of this Court on an application of this kind to conduct or decide welfare issues as such, when deciding whether or not to exercise its discretion to order for return which involves an examination of the rationale of those objections, it cannot avoid taking into account what will be the plain effect upon a child of making such an order. In this case, that is the disruption of R’s schooling and contented home life in England, the distress and feelings of disillusion which I have no doubt he will experience at being forced to return and await the uncertain outcome of the Portuguese proceedings, and the unhappy home conditions to which he will be returning in the light of the mother’s character and attitude which will exacerbate rather than diminish his strong objections to living in Portugal. Put colloquially, his objections are largely based on a mature and rational desire for a quiet life in England rather than a conflict- ridden life in Portugal.[75]I bear in mind and take into account that it is the philosophy of the Convention “buttressed” by B2R that, in the ordinary way, the welfare issues involved in custody disputes should be determined in the jurisdiction of habitual residence. However, it is also the philosophy of the Convention that applications for a return should be made swiftly by aggrieved parties aware of their Convention rights and, finally, that in exceptional cases, “child’s objections to return” may be so strong and rationally grounded that the Court may in its discretion refuse an application for return which otherwise satisfies the requirements of the Convention.[76]I bear in mind also, as I have warned R, that if I refuse an order for return then the Faro Court may think it appropriate to invoke Article 11 paragraphs 6-8 of B2R and require R’s return. That prospect is plainly an important consideration. However, so far as R’s welfare is concerned this is not a case where the quality or appropriateness of the home conditions provided by the father are in question. Accordingly if, once having received a copy of this judgment, the Faro Court does decide to order R’s return, I do not think that the relatively short extension to R’s stay in England which would occur prior to such order for return, would be anything but beneficial for him, engaged as he is in the middle of a school term in a situation where his day to day life is happy and congenial to him rather than a source of stress and unhappiness, as it would be in Portugal whilst awaiting the decision of the Portuguese Court.[77]I decline to make an order for R’s return.

Postscript: Habitual Residence

[78]Following completion of the evidence and some of the parties’ submissions, I have received closing submissions on behalf of R belatedly seeking to raise a further issue, namely that of R’s habitual residence at the time of “wrongful retention” whenever that may have occurred. This not only involves the unexpected development of a case based on first principles rather than settled authority, relating to the autonomous capacity of a child to lose or acquire habitual residence independently of parental intention or agreement, but a close examination of R’s state of mind and intentions at various times, upon neither of which have the parties’ attention hitherto been focussed; nor has evidence or cross-examination been so directed for the purpose of exploring those issues. Finally, I do not think that this is a case in which the facts merit an examination of the various and tentative legal dicta upon which Ms Halkyard adventurously seeks to erect a difficult argument. I therefore do not propose to consider it further.

Cited in 8 later judgments